One Foot in the Door: Evidence-Based Limits on the Legislative Mandate

Abstract

Legislative entrenchment or the long-term persistence of legislation has been associated with ineffective and obsolete laws. This position has nonetheless underestimated the natural bias towards the status quo that characterizes our legal order and the difficulty to terminate existing policies and laws. In this Article, I argue that the long-term stability of legislation only becomes a problem when it impedes the passage of new—and, in many cases, more effective—legislation. This Article aims to make two central contributions. First, it scrutinizes the legal and non-legal forces behind this problem. Second, it explains how temporary legislative measures should be employed to correct for the negative effects of legislative entrenchment. This Article suggests two ways in which these instruments may facilitate legislative reform. First, temporary legislative instruments (e.g., sunset clauses) can be employed as consensus-gathering mechanisms regarding legislative changes that might face initial opposition. Second, they can be employed as evidence-based mechanisms which promote research on available legislative alternatives. I contend that temporary legislative instruments such as sunset clauses, pilot programs, and state policy experiments should be used to produce evidence of the effectiveness of new legislation and rationalize the lawmaking process. This evidence-based approach can contribute to the disentrenchment of ineffective legislation and operate as a counterweight against certain de facto entrenchment forces.

Keywords: entrenchment, temporary legislation, experimental laws, sunset clauses, evidence-based, legislation

JEL Classification: K10